The doctrine of men’s rea ensures that those who cause the actus reus are legally responsible for doing so. There are different forms of men’s rea, from intention and knowledge to recklessness. Focussing upon ‘recklessness’, it can be submitted that over time the courts have alternated between the ‘subjective’ and ‘objective’ test Caldwell . However, the subjective approach continues to be that favoured by the courts as illustrated in the case of that now overrules the case.


The question concerns the area of recklessness which includes two main elements and they are if the defendant takes an unjustifiable risk of specific consequence and if the defendant is known to that risk. The House of Lords now overruled Caldwell, however it remains significant theoretically even after its demise. It can be argued that while R v G ensured that the ones who did not meet the demands of Caldwell were excluded from liability.


There is a growing body of literature that recognises the importance of R v Cunningham (Cunningham) where the House of Lords established the subjective recklessness, as having actual foresight of the consequence, and taking the risk of that consequence unreasonably and it continued to apply to such offences. However, the House of Lords in Caldwell, that is controlled by Lord Diplock, created a new objective standard for recklessness, the reason for this is it allowed too many defendants to escape liability as they claim they did not foresee the risk extending not only to actual foresight, but situations where defendant fails to appreciate an obvious risk that the outcome will occur.


Furthermore, the court took an objective approach which follows the case of Metropolitan Commissioner v Caldwell (Caldwell) under s.1 of the Criminal Damages Act 1971 where the court states that two tests must be satisfied and they are S. that an obvious and serious risk of damage and S no thought of the risk possibilities and carried on with the act whilst knowing of the risk. The house of lords reassessed subjective recklessness of men’s rea when they overruled Caldwell. Moreover, Lord Steyn mentioned that the arguments against Caldwell were irresistible. He argued the problems in terms of that it was a difficult for jurors to understand, and sometimes offended their sense of fairness and the thought process of the risks in terms of their age were not justified. This injustice was especially obvious in the case of Elliot v C, where a girl with learning difficulties was found guilty of arson even though she was unable of anticipating the risk.

This case was treated on the basis of objective standard however if they look the subjective aspect, where it can be argued that is based entirely on the defendant’s state of mind allowing too many defendants to escape liability by making a claim of not foreseeing the risk therefore the defendant would not have been found guilty and reform will be needed.


Caldwell was criticised by many academics because it was able to cause bias as it made people guilty of not being able to foresee the risk. Furthermore, the courts moved away from the objective principle which was the current position due to the criticism. The subjective approach was confirmed in Cunningham. In R v G, the House of Lords concluded that the subjective approach in Cunningham should be restored. The shift is towards adopting a subjective approach. In general, it is necessary to look at the matter from the defendant’s perspective and how it appeared for instance, if the accused did not perceive a risk, he will not be culpable. In the case of Booth v Crown prosecution service, the courts applied the objective test to recklessness because they thought that the damage could be foreseen. However, complications continue in R v G, where Lord Diplock in Caldwell was addressing the accountability of a defendant who, rather than being unable to identify the risks, can be liable for failing to offer any thoughts. The final state of mind is not more nor less subjective than the first state if one is attaching labels, as suggested by Lord Diplock. Reform bodies have been recommended both after and before Caldwell that the Cunningham definition should be continued, it was argued that it is easier to apply and for the jury to comprehend and not mistake recklessness and negligence to have the same meaning in court.

In conclusion, ultimately, while R v G is comprehensible in its strengths to deal with the vibrant prejudice of cases like Elliot v C, previously following Caldwell, for those respondents who merely fail to provide proper thought to evident risks. It is suggested that both objective and subjective recklessness exists the requirement that the defendant’s behaviour must not be understandable. Lord Diplock argued, that this type of mental state can potentially be equally as subjective to actual foresight of consequence.



Lawyer: Maram Al Lawati

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